Principles, Politics and Privilege: How the Crime-Fraud Exception Can Preserve the Strength of the Attorney-Client Privilege for Government Lawyers and Their Clients

Article excerpt

  I. Attorney-Client Privilege Background and Policy
       A. Historical Background and Constitutional
       B. Attorney-Client Privilege Promotes Public Policy
          Through Disclosure and Effective Legal Advice
       C. As an Entity Privilege
       D. Limitations on the Attorney Client Privilege
       E. Crime-Fraud Exception
 II. Dispute over Whether the Government Attorney-Client
       Privilege Should Exist in a Federal Grand Jury Proceeding
       A. Declining to Extend the Government Attorney-Client
          Privilege in the Federal Grand Jury Context
          1. In re Grand Jury Subpoena Duces Tecum
          2. In re Lindsey
          3. In re A Witness Before the Special Grand Jury
          4. Categorical Arguments Against Extending the
             Government Attorney-Client Privilege in the
             Federal Grand Jury Context
             a. Corporate Privilege Rationale Does Not
                Extend to the Government Context
             b. Open and Honest Government Is the
                Paramount Public Interest
             c. Client Candor Is Not Increased Through
                Preservation of the Privilege
             d. Other Privileges Can Provide Sufficient
                Protection to Confidential Materials
       B. Extending the Government Attorney-Client Privilege
          in the Federal Grand Jury Context
          1. In re Grand Jury
          2. In re County of Erie
          3. Categorical Arguments for Government Attorney-Client
             Privilege in Federal Grand Jury Context
             a. Corporate Analogy Is Relevant to a
                Consideration of the Government Attorney-Client
             b. Denying Elected Officials Open Discussions
                About Pending Litigation with Counsel Would
                Be Detrimental to Society as a Whole
             c. Full and Frank Disclosure Is Just as Important
                in the Public Context as It Is in the Private
             d. Other Privileges Do Not Deal with the Unique
                Requirements of Attorney Confidentiality
  III. Resolving the Unclear Standard for the Government
        Attorney-Client Privilege in the Criminal Context
        A. The Client of a Government Attorney Is the
           Organization They Serve
        B. The Underlying Principles Support the Privilege in the
           Federal Grand Jury Context
        C. The Crime-Fraud Exception Is Sufficient to Protect
           the Public Interest

[W]e can attest to the vital importance of candor and confidentiality in the Solicitor General's decisionmaking process.... Our decisionmaking process require[s] the unbridled, open exchange of ideas--an exchange that simply cannot take place if attorneys have reason to fear that their private recommendations are not private at all, but vulnerable to public disclosure. Attorneys inevitably will hesitate before giving their honest, independent analysis if their opinions are not safeguarded from future disclosure. High-level decisionmaking requires candor, and candor in turn requires confidentiality. (1)


Government lawyers are regulated by the ethical rules of the state in which they are members of the bar. (2) In most states, professional responsibility rules of confidentiality do "not distinguish between government and private sector lawyers." (3) As a result, government lawyers are under an ethical obligation to comply with their clients' instructions. (4) The scope of protections provided by asserting the attorney-client privilege in the face of a grand jury subpoena, however, is not clear. (5) Given that over 40,000 lawyers serve our federal government in some capacity, a clear ethical obligation should be provided. (6) An expanding government in the current regulatory regime will require more lawyers to provide counsel to government officials so the government can "function efficiently and effectively. …